At what point does the adversarial process that is central to our legal system cease to be truly adversarial? In a case involving an indigent prisoner who sued prison administrators and staff for deliberate indifference to his medical needs, a divided Seventh Circuit panel reversed a summary judgment in favor of the defendants, sending the prisoner's suit back down for further fact-finding. Writing for the majority, Judge Richard Posner turned to the Internet for additional research rather than confining review to the factual findings in the record compiled by the parties in the district court below. In a vigorous partial dissent, Judge David Hamilton accused Judge Posner of "turn[ing] the court from a neutral decision-maker into an advocate for one side" and asserted that the court had "no business reversing summary judgment based on our own, untested factual research."
While Judge Hamilton's criticism of extra-record research certainly has force, Judge Posner was correct to be deeply troubled by a profound failure on the part of the district court to ensure that the prisoner's claim was subjected to genuinely adversarial scrutiny. A prisoner who cannot afford to hire, and has been denied requests for the appointment of, both a lawyer and an expert witness necessary to support his highly plausible claim of medical indifference has no realistic prospect of securing relief, even if he has genuinely suffered a constitutional wrong. To allow (as the district court did) the "expert" testimony of a prison physician who is himself a defendant in the case to defeat a constitutional claim by a prisoner who was denied any means of rebutting that testimony is to make a mockery of due process of law.
The facts are sympathetic and even dismaying. Jeffrey Rowe was diagnosed with gastroesophageal reflux disease (GERD) in 2009, while an inmate at Pendleton prison. The prison physician initially gave him 150-mg Zantac pills to alleviate his pain; Rowe was permitted to take the pills in his cell and to take them anytime. In January of 2011, Rowe's pills were confiscated, and he was told that he could only take pills when a nurse gave them to him at 9:30 a.m. and 9:30 p.m., unless he bought pills at a prison commissary, which he could not afford to do. Rowe complained that he needed to take Zantac with his meals, scheduled by the prison for 4 a.m. and 4 p.m., but he was denied permission to do so unless he purchased the pills himself.
In July 2011, Rowe's prescription lapsed, and his requests for a renewed prescription were denied. Dr. William Wolfe, a prison physician who had been prescribing Rowe Zantac for half a year, reviewed his records and (without examining Rowe) decided that Rowe did not require Zantac at all. In August, Dr. Wolfe changed his mind and began prescribing it again. Rowe was still not allowed to take Zantac at meal times, leaving him in severe pain for hours between meals. He sued prison administrators and staff, including Dr. Wolfe, charging, among other things, that only allowing him to take Zantac at 9:30 AM and 9:30 PM, despite his complaints that doing so failed to control his acid reflux at mealtimes, constituted deliberate indifference to his medical needs and thus violated the Eighth Amendment. Notably, the Supreme Court has held, in a case called Farmer v. Brennan (1994), that deliberate indifference to serious medical needs amounts to cruel and unusual punishment.
The district judge granted summary judgment in favor of the defendants on Rowe's claim concerning the timing of the administration of his medication, relying in substantial part upon the "expert" testimony of Dr. Wolfe, who was not a gastroenterologist, had never physically examined Rowe, and was himself a defendant in the case. According to Dr. Wolfe, Zantac is "fully effective for twelve hour increments" and "does not have to be taken before or with a meal to be effective." He further explained in his affidavit that he prescribed Zantac for Rowe "as a courtesy," not out of medical necessity, but did not explain why he thought Rowe's condition did not require Zantac.
Rowe had nothing to offer in response to Dr. Wolfe's statements except his own claims of extreme pain during those periods of time when he was not allowed to take Zantac with or shortly before his meals. Rowe was denied requests for appointment of counsel and for an expert witness to assist him during litigation, and did not have the resources to secure either without the assistance of the court. That is to say, he was denied the aid from the court that would have made it possible for him to challenge Dr. Wolfe's qualifications and neutrality or produce additional evidence.
The Seventh Circuit Court of Appeals reversed. Judge Posner, writing for a divided panel, began by carefully scrutinizing the record. He noted that Dr. Wolfe's testimony was contradicted by Rowe's own personal experience with the timing of his medication, and that Wolfe's testimony was "highly vulnerable." Given that Dr. Wolfe was a defendant in the case, was not a gastroenterologist, and did not offer any basis for his "off the cuff medical opinion," Judge Posner suggested that Dr. Wolfe should not have been treated as an expert at all. Posner further noted that physicians had prescribed Zantac to Rowe for two years. Given that "the Indiana Department of Correction permits such continuous treatment only to treat a serious health condition," Judge Posner reasoned, "presumably the prescribing physicians thought Rowe's condition serious."
Judge Posner then turned to the Internet, "in default of the parties' having done so." His research revealed that both the manufacturer of over-the-counter Zantac and the Mayo Clinic advise taking 150-mg Zantac pills with water thirty to sixty minutes before eating a meal or drinking beverages that might cause GERD symptoms. While Judge Posner was careful to state that the research only gave "credence to Rowe's assertion that he was in pain," rather than "creat[ing] a dispute of fact that was not already in the record," the research corroborated Rowe's claims and further undermined the reliability of Dr. Wolfe's testimony.
Judge David Hamilton wrote a lengthy, impassioned partial dissent. As Judge Hamilton saw it, the majority had no business using Internet research to "contradict the only expert evidence actually in the summary judgment record." Judge Hamilton candidly admitted that "[w]hen a prisoner brings a pro se suit about medical care, the adversary process... is at its least reliable," but nonetheless contended that majority's cure might well be worse than the disease. Judge Hamilton argued that the "majority's interpretation of its internet research is not a reliable substitute for proper evidence subjected to adversarial scrutiny," citing the Supreme Court's landmark decision in Daubert v. Merrell Dow Pharmaceuticals (1993) for the proposition that "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."
Judge Hamilton well captures the value of the adversarial process. But he does not address the core problem identified by the majority: Here, there had been no truly adversarial process. The resources available to each side for seeking out and scrutinizing evidence were not remotely comparable; there was no effort below to correct for that imbalance; and there was compelling reason to question both the expertise and the neutrality of the key "expert" witness. We are left with a fundamental question, captured nicely by Judge Posner: "Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness... to carry the day against a pro se plaintiff helpless to contest the affidavit?" If unsupported assertions by prison physicians who are also defendants can defeat constitutional claims by indigent prisoners who have been deprived of the ability to present rebuttal evidence, it is difficult to imagine how someone in Jeffrey Rowe's position could ever bring a successful constitutional claim, even if his rights had actually been violated.
The adversarial process is not an end in itself--it is a means for ascertaining the truth. A functioning adversarial process requires judicial engagement--impartial, reason-guided exploration of constitutional claims, grounded in reliable evidence. Absent such judicial engagement, the adversarial process would in many cases be a mere sham with a predetermined outcome for poor and legally unsophisticated defendants. That is precisely what Jeffrey Rowe experienced. One need not embrace Judge Posner's prescription to recognize that no system of justice worthy of being so called can tolerate that result.